IN THE COURT OF APPEAL AT PUTRAJAYA

APPEAL NO P-05(M)-337-12/2015

BETWEEN

MOHD YASSER BIN SHAIK MAHMAD … APPELLANT

AND

PUBLIC PROSECUTOR … RESPONDENT

[In the matter of High Court Malaya at Penang

Criminal Trial No. 45B-18-06/2014

Between

Public Prosecutor

And

Mohd Yasser bin Shaik Mahmad]

CORAM:

MOHD. ZAWAWI SALLEH, JCA

ABANG ISKANDAR ABANG HASHIM, JCA

ABDUL RAHMAN SEBLI, JCA

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 JUDGMENT OF THE COURT

The Charge

“Bahawa kamu pada 26/01/2013 jam lebih kurang 3.00 pagi hingga 4.00

pagi di No 1-01-43A Ideal Avenue, Medan Kampong Relau 1, 11900

Bayan Lepas di dalam daerah Barat Daya, di dalam negeri Pulau Pinang

telah melakukan bunuh dengan menyebabkan kematian ke atas Zaini

bin Ahmad (L) Kp 760613-07-5133, dan oleh yang demikian kamu telah

melakukan suatu kesalahan yang boleh dihukum di bawah Seksyen 302

Kanun Keseksaan.”

Brief facts of the case

[1] On the day as mentioned in the charge, Mohd Yasser bin Shaik

Mahmad (“the accused”), went to the stated shop with his 2 friends

namely, VT Sudesh Kumar a/l Veerayah (“SP8”) and one Vickneswaran.

[2] When the accused entered into the shop, Zaini bin Ahmad (“the

deceased”) was surfing the internet at computer number 9. The accused

sat beside the deceased and talked to the deceased but the deceased

did not respond to him. Suddenly, the accused stood up and hit the

deceased’s head five times with a helmet before leaving the said shop.

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[3] After being hit, the deceased remained silent with his head resting

on-top of the computer desk. After a while, he stood up and proceeded

slowly to the toilet in the shop.

[4] The deceased then went back to the shop’s counter and sat

beside Tan Kun Seng (“SP13”). SP13 told the deceased that his eye

looked red. SP13 advised the deceased to go to the hospital as the

deceased walked out from the shop.

[5] On the same day, Amir Hasyim Ibrahim (“SP3”), received a phone

call from a man called “Man” informing him that there was a man who

had passed out near the B-Suite Hotel, Bukit Jambul, Pulau Pinang. SP3

went to the place and there he found the deceased lying unconscious at

the back seat of a van which was about 20 meter from the internet shop.

He could see an injury on the deceased’s head with blood stain on his

shirt. He also saw that the deceased had wounds at his mouth and nose

and that his eyes were swollen.

[6] The deceased was later rushed to the Penang Hospital. At the

hospital, Dr Nasir Bin Abdul Wahab (“SP24”) examined the deceased

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and found that the deceased had suffered severe injury on his head.

The deceased succumbed to his injury on 28 January 2013 at 10. 26am.

[7] The post-mortem report prepared by Dato’ Dr. Bhupinder Singh

(“SP16”) showed that the cause of the deceased’s death was ‘extradural

hemorrhage due to blunt trauma to the head’.

[8] Premised on the above factual circumstances, the accused was

charged under section 302 of Penal Code at the High Court in Penang

for causing death to the deceased without lawful excuse. At the end of

prosecution case, the Court found that the prosecution had successfully

established a prima facie case as per the murder charge against the

accused and had ordered him to enter on his defence.

[9] In his defence, the accused said that, a night before the incident,

the deceased asked the accused to bring him some “syabu” and they

agreed to meet at Taman Bendera. When the accused arrived at Taman

Bendera, the deceased said he did not bring any money with him and

asked the accused to go with him to Petronas Relau to take the money.

Instead of going to Petronas Relau, they went to Paya Terubung where

the deceased had left him there. The deceased had to walk back for

about two to three kilometers to Taman Bendera. The deceased had

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also absconded with the “syabu” worth RM 300. 00 without making any

payment to the accused. The accused did not deny that he had hit the

deceased at the internet shop as he felt angry with the deceased for not

responding to him when he asked him about the “syabu”. However, the

accused denied having any intention to kill the deceased.

[10] At the end of the case, the High Court Judge found that the

accused had failed to cast a reasonable doubt against the prosecution

case and had found him guilty for the murder of the deceased. He

proceeded to sentence him to death as provided for by the law.

Aggrieved by the decision, the accused had then appealed against the

decision to this court.

The Appeal

[11] We heard the appeal on 30 November 2016. Before us, counsel

for the accused raised three main issues namely:

a. Failure of learned trial Judge to appreciate the defence,

b. Failure of learned trial Judge to appreciate provocation, including

cumulative provocation; and

c. That there was no medical evidence to show that the injury that

was inflicted by the accused was sufficient in the ordinary course

of nature to cause death

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Our findings

[12] Having considered the submissions by both learned counsel and

the learned Deputy Public Prosecutor (“DPP”), we allowed this appeal in

part. We set aside the conviction and the death sentence for the offence

of murder. In its place, we had entered a conviction for culpable

homicide not amounting to murder under section 304(a) of the Penal

Code and sentenced him to 20 years imprisonment with effect from the

date of his arrest i.e. 28 January 2013. We now proffer our reasons for

having decided the way we did.

[13] We will deal first with the issue (c). We start with section

300(c) of the Penal Code. It reads:

“…if it is done with the intention of causing bodily injury to any

person, and the bodily injury intended to be inflicted is sufficient

in the ordinary course of nature to cause death…”.

[14] From a bare reading of section 300(c) of the Penal Code, it is clear

that murder may also be committed if the accused intentionally causes

an injury to a person which injury, in the ordinary course of nature, is

sufficient to cause death. Under that limb (c) to section 300 of Penal

Code, an intention to kill on the part of an accused person is not a pre-

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requisite which the prosecution would otherwise have to prove in order

to secure a conviction for a murder charge.

[15] Therefore, to sustain a charge of murder under limb (c) to section

300 of the Penal Code, the prosecution must lead evidence from a

medical doctor to testify in Court to the effect that the injury sustained by

the deceased and intentionally caused by the accused, was sufficient in

the ordinary course of nature to cause death to the victim. That test is an

objective test.

[16] Reverting to our instant appeal, there was the evidence from the

prosecution witness who had testified to the effect that the injury

sustained by the deceased that was attributable to the accused. But the

critical question that needed to be answered, and answered in the

clearest of terms, was whether the injury that was inflicted by the

accused and suffered by the deceased was sufficient in the ordinary

course of nature to cause death.

[17] In this case, the deceased did not die immediately after being

admitted into hospital. In fact, he died 2 days later.

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[18] Limb (c) under section 300 of our Penal Code is in pari materia

with the 3rd Iimb of the Indian Penal Code. It has been observed by

Ratanlal and Dhirajlal, in “The Law of Crime”, that in order to establish a

case against the accused under this particular limb, the prosecution had

to prove, first, that the accused person had intentionally caused bodily

injury or injuries onto the deceased’s person; and secondly, that the

injury so inflicted on the deceased was sufficient in the ordinary course

of nature to cause death. (Refer to the case of Faquira v. State of Uttar

Pradesh AIR 1955 All 321). The same learned authors further observed

as follows:

“From the fact that the injury caused is sufficient in the course of

nature to cause death, it does not conclusively follow that the

offender intended to cause an injury of that nature. The one

does not conclusively prove the other.”.

[19] The authors concluded, on the true interpretation of that clause 3

to section 300 of the Indian Penal Code, as follows:

“To attract the provisions of clause thirdly of Section 300, I.P.C.

the prosecution should prove that the injuries on the person of

the deceased were caused with an intention to inflict those

injuries and none of the injuries was caused unintentionally. It

should also be further proved that the injuries caused to the

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 deceased were sufficient in the ordinary course of nature to

cause his death.” [See, the case of Shiv & Ors v. State of

Madya Pradesh [1988] 3 Crimes 8].

[20] With respect, we agree with the learned authors, on the true import

of the limb (c) to our section 300 Penal Code. It has given great clarity

as to the required legal elements that the prosecution would need to

establish in order to secure a conviction for murder against the accused

person. We would wish to add that while the first part of the limb [c] to

section 300 of the Penal Code could be proven by evidence, either direct

or circumstantial, from witnesses of fact called by the prosecution,

however the second part of the same limb [c] must inevitably be

established, as a matter of expert medical opinion, that such injury that

was intentionally inflicted was sufficient in the ordinary course of nature

to cause death to the deceased. In normal circumstances, clear

testimony to that effect, from the pathologist who has performed the

post-mortem or autopsy on the deceased body, would suffice to

establish that crucial factual circumstance and legal element.

[21] The evidence led in this instant appeal had shown the accused

had hit the deceased person on his head several times with a helmet on

that fateful day. The criminal law generally presumes that every man

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intends the consequences of his deliberate acts, overt or opaque,

including omissions, unless he could show that those acts or omissions

have been occasioned by him, either accidentally or negligently, or when

those acts or omissions were done by him when he was not in control of

his mind, as those latter circumstances would either totally or partially

negative criminal intention [the mens rea or guilty mind] on his part. Or

that there was a material intervening act subsequent to his impugned

acts or omissions. In the absence of those circumstances, he must be

deemed to have intended the consequences of his acts or omissions. In

the context of the factual circumstances in this instant appeal, it was

clear to us that the Appellant had intended the injuries which were

inflicted by him on the deceased’s head which, objectively, is a critical

part of a human anatomy, with a helmet.

[22] We now turn to consider the evidence adduced by the prosecution

that would evince the nature of the injury suffered by the deceased. The

crucial evidence is the testimony of the pathologist Dr Bhupinder Singh

[SP16]. He was the consultant forensic who performed the post mortem

on the deceased. We would go straight to that part of his evidence which

was concerned with this crucial aspect of the prosecution case. For that

purpose, we would advert to page 178 of the Record of Appeal, Volume

2 and this was what we had found:

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 “TPR: Whether the injury suffered is ordinary course in nature?”

[23] Viewing in context, we were of the opinion that the question ought

to read as follow:

“TPR: Whether the injury is sufficient in ordinary course of nature to

cause death?”

[24] To the question posed by the learned DPP, SP16 had answered,

“I think I have answered the question just now. The same thing.”

[25] So, we had to go back to page 177 of the Record of Appeal to see

what SP16 had earlier alluded to the Court as to his answer as to the

nature of the injury. The question which the TPR had asked him was:

“Whether the injury fatal in nature?” This was what the SP16 had

testified in Court, in response to that question:

“I think it is very difficult in nature because if he has been found

early brought to the hospital and he could survive then we can

say it’s not fatal. In this particular case he was brought in late

and when he was brought in the … hematoma already

develops. The swelling to the brain was there. There were

already concussions of the brain due to the pressure of the

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 cloth. In this particular case, he is in very critical conditions. It’s

become fatal in this case.”

[26] The learned DPP submitted before us that this part of the

pathologist’s [SP16] evidence was sufficient in order to satisfy the

requirement set out in limb [c] to section 300 of the Penal Code upon

which the prosecution was relying on to frame the murder charge

against the accused. The learned DPP was candid enough to concede

during submissions before us that this was the only evidence that was

directed to address limb[c] to section 300 from SP16.

[27] With respect, we were of the view that this evidence by SP16 as

reproduced in the above paragraph in this judgment was not sufficient to

fulfill what was required of the prosecution in order to establish the

crucial element in limb [c] upon which the prosecution had professed to

premise the murder charge against the accused. What the said limb [c]

required, with respect, from the prosecution would be for it to lead

objective evidence coming from a witness with the necessary expertise

in medical science to testify in Court that the injury that was intentionally

inflicted on the deceased by the accused is, in his opinion, sufficient in

the ordinary course of nature to cause death. In this instant appeal,

SP16 did say that the injury caused the death of the deceased because

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apparently, medical treatment was not rendered quickly enough on the

deceased. But the SP16 did not say whether, in his opinion, the injury

that was sustained by the deceased was in the nature of an injury which

‘is sufficient in the ordinary course of nature to cause death’. To be fair

to the DPP who did the prosecution in the High Court, he did try to ask

that question of SP16 as illustrated in paragraph [23] of this judgment,

but SP16 had responded by saying that he thought that he had

answered that question already. To our mind, the learned DPP ought to

have pursued that line of questioning because the answer given by

SP16 to the previous question immediately preceding that question did

not have the desired effect of addressing what was required by the

phrase “is sufficient in the ordinary course of business to cause death”.

As the evidence of the prosecution stood at the end of its case at the

High Court trial, the phrase “is sufficient in the ordinary course of nature

to cause death” in limb [c] to section 300 of the Penal Code, had

remained not proved. To our mind, the absence of such positive

statement of opinion emanating from such an expert medical witness

[SP16] was fatal to the charge for murder that was premised upon limb

[c] to section 300 of the Penal Code.

[28] To reiterate, from the answer that was given by SP16, the

pathologist, the injury suffered by the deceased was not ipso facto fatal.

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If immediate medical treatment or attention was rendered to the

deceased, he could have been saved. That was the tenor of his

evidence in Court. It was clear to our mind that in light of such testimony

from SP16, it could not be said that the injury suffered by the deceased

could be categorized as one which was ‘sufficient in the ordinary course

of nature to cause death’ within the contemplation of limb [c] of section

300 of the Penal Code. Death was not an imminent natural consequence

of the injury inflicted by the accused although the infliction of the injury

was intentional on the part of the accused. Though death may have

been a likely result, it was not most probably to happen in itself if

medical attention was promptly rendered. It depends on the severity of

the injury or injuries suffered by the deceased as a result of the intended

injury or injuries. Thus, death caused by an injury intentionally inflicted

by a single blow, may properly be used to found a murder charge,

depending on the nature of the injury as testified to by a medical expert

(pathologist) that was inflicted in the context of the limb[c] of section 300

of the Penal Code. We would refer to the decision of the then Federal

Court case of Tham Kai Yau & Ors v Public Prosecutor [1977] 1 MLJ

174 where learned Justice Raja Azlan Shah FCJ [as His Highness then

was] had occasion to state the difference that exists between murder

and culpable homicide not amounting to murder in the following manner.

If the impugned injury inflicted will in most probability cause death, then

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it is murder. If however, an act that is only likely to cause death, then it is

only tantamount to culpable homicide not amounting to murder. Now,

that to our mind, neatly encapsulates the critically fine but significant

distinction, that demarcates criminal misconducts as to what would, in

law, amount to murder and culpable homicide not amounting to murder.

It is a matter of life and death. In that regard, we could do no better than

to adopt the said approach, so succinctly expressed by learned Justice

Raja Azlan Shah FJ [as His Highness then was] in the Tham Kai Yau’s

case [supra]. The evidence emanating from SP16 (the Pathologist) did

not come out clearly to indicate whether the injury suffered by the

deceased was either one that was most probably to cause death or that

it was only likely to cause death. To our minds, a doubt was created and

any such doubt created must be resolved in favor of the accused

person. That much, the law is trite.

[29] So to recap, it was our considered view that there was insufficient

evidence coming from the relevant prosecution witnesses to state with

clarity as to whether the injuries inflicted by the accused were ‘sufficient

in the ordinary course of nature to cause the death’ of the deceased.

The role of a criminal Court is circumscribed. It has to act on the

admissible evidence that was led within its four walls. A Judge may well

have his or her own personal view about the case that he or she is

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adjudicating, but in the final analysis, the ultimate decision of the court

must be driven entirely by the force of the evidence before it, one way or

another. Justice Ong Hock Thye FJ captured the very essence of how a

Judge should decide a case before him, in the Federal Court case of Sia

Soon Suan v PP [1966] 1 MLJ 116, where the learned Judge had

occasion to say the following:

“… the requirements of strict proof in a criminal case cannot be

relaxed to bridge any material gap in the prosecution evidence.

Irrespective of whether the court is otherwise convinced in his own

mind of the guilt or innocence of an accused, its decision must be

based on the evidence adduced and nothing else....”

[30] Premised on the above findings by us, the conviction entered

against the accused under section 302 of the Penal Code could not, with

respect, stand. The lack of medical evidence that would establish the

critical element of section 300(c) of the Penal Code had put paid to the

prosecution case for murder. In the result, the appeal ought to be

allowed in part and that a conviction for culpable homicide not

amounting to murder under section 304(a) of the Penal Code be entered

against the accused person.

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[31] In light of our findings above, it had become unnecessary for us to

consider the other 2 grounds [a] and [b] as raised by the learned counsel

on behalf of the accused person. To our minds, those grounds would

only be relevant for our consideration if the charge for murder had been

established on a prima facie level at the end of the prosecution case.

[32] But for reason of completeness, in particular, we would address

the defence of provocation. To our minds, it would only be available in a

charge for murder. The wordings under the Penal Code to describe the

provocation are ‘grave and sudden’. In fact, it has to be so grave and

sudden that there was no time to reflect, before an accused person

commits the impugned conduct. In the words expressly employed in

Exception 1 to section 300 of the Penal Code, “Culpable homicide is

not murder if the offender, whilst deprived of the power of self-control by

grave and sudden provocation, ...” The legal test that needed to be

satisfied by an accused person desirous of benefitting from this defence

of provocation has been laid down by the Supreme Court of India in the

case of K.M. Nanavati (1961) 64 Bom. L.R. 488 to be as follows:

“The test of ‘grave and sudden provocation’ is whether a

reasonable man, belonging to the same class of society as the

accused, placed in the situation in which the accused was

placed would be so provoked as to lose his self control.”

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[33] This test had been imported into our very own local criminal

jurisprudence as the correct statement of the law by our apex Court in

the case of Lorensus Tukan v PP [1988] 1 CLJ 143 which was

subsequently referred to with approval by the Federal Court in the case

of Che Omar Che Akhir v PP [2007] 3 CLJ 281. Indeed, the recent

decision of our apex Court in the case of Pendakwa Raya v Surbir

Gole [Rayuan Jenayah No 05-315-12/2014(J)] via the speech by

learned Justice Zaharah Ibrahim FCJ had the effect of reiterating the

principle so entrenched in our criminal jurisprudence that for a defence

of provocation to succeed in a murder charge, it is incumbent on the

accused person to satisfy the Court that the alleged provocation coming

from the deceased person was grave, as well as it was sudden.

[34] Having considered the state of the law on provocation that is

capable of reducing a charge for murder to one for culpable homicide

not amounting to murder, as falling within exception 1 to section 300 of

the Penal Code, Her Ladyship had concluded in paragraph [35] of her

Grounds of Judgment on behalf of the apex court, as follows:

“We believe that Che Omar’s case has made the legal position

clear with regard to cumulative provocation of the nature

described in paragraph 34 above. We ought to be reminded

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 that the defence of “cumulative provocation” does not exist in

our criminal law, and therefore we are not persuaded that it is a

permissible defence to section 300 of the Penal Code. Only the

defence of grave and sudden provocation is specifically

provided for in Exception 1 to section 300 in the Penal Code.

We are not inclined to agree to any departure from the

established law.”

[35] As such, nothing short of grave and sudden provocation would

suffice. But in the circumstances of this case, there was no need for this

Court to consider this defence of provocation for 2 reasons. First, in a

charge for murder, cumulative provocation, was not a defence which

was known in criminal law. The fact that the defence of provocation was

‘cumulative’, it presupposes that it was a total sum of a series of

incidents which the accused person had alleged to have a provocative

effect on him. In other words, they were not sudden and grave in effect if

taken singularly as an act. Secondly, as the charge had been reduced to

culpable homicide not amounting to murder by us, such a defence of

grave and sudden provocation is not defence that is at the disposal of

the accused person.

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[36] From our perusal of the evidence, it is clear that the accused had

caused the death of the deceased but the same time the body of

evidence that was led in court did not evince that it was an act that could

amount to murder within contemplation of limb (c) of section 300 of the

Penal Code. In fact, it was submitted before us during oral submissions

by learned counsel for the accused that in view of the circumstances of

this case, the accused ought to be convicted for culpable homicide not

amounting to murder. In light of the state of the evidence, in particular in

relation to the medical evidence of SP16, we had, with respect, agreed

with him.

[37] Based on the above reasons, we had unanimously found that the

medical evidence was not sufficiently clear to prove that murder had

been established beyond reasonable doubt. We were of the opinion that

this had been a fit and proper case to reduce the murder charge against

the accused to one of culpable homicide not amounting to murder under

section 304(a) of the Penal Code. We, therefore, had set aside the

conviction entered and the death sentence imposed by the learned High

Court Judge under section 302 of Penal Code, against the accused

person.

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[38] Having heard the submissions on mitigation by both parties, we

had imposed a sentence of 20 years’ imprisonment from the date of

arrest. The sentence was, to our minds, appropriate in the

circumstances bearing in mind the public interest element involved. A life

had been needlessly lost in this case and there were really no

extenuating circumstances which could be favourably taken in favour of

the accused person, apart from the fact that he was a first offender. In a

case of culpable homicide not amounting to murder, that factor would

not count for much as a mitigating factor. Order accordingly.

Dated: 28 February 2017

ABANG ISKANDAR BIN ABANG HASHIM

Judge

Court of Appeal

Malaysia.

Parties appearing:

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For the Appellant: Dato' Ranjit Singh Dhillon, Messrs. J. Kaur, Ranjit &

Assoc.

For the Respondent: Pn. Jasmee Hameeza binti Jaafar, Deputy Public

Prosecutor, Attorney Generals’ Chambers.

Cases referred to:

1. Che Omar Che Akhir v PP [2007] 3 CLJ 281

2. Faquira v. State of Uttar Pradesh AIR 1955 All 321

3. K.M. Nanavati (1961) 64 Bom. L.R. 488

4. Lorensus Tukan v PP [1988] 1 CLJ 143

5. Pendakwa Raya v Surbir Gole [Rayuan Jenayah No 05-315-

12/2014(J)]

6. Sia Soon Suan v PP [1966] 1 MLJ 116

7. Tham Kai Yau & Ors v Public Prosecutor [1977] 1 MLJ 174

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